Personal Corporatehood: Coping With the Reason Divided of Citizens United

There's great consternation brewing over the recent Supreme Court decision that cements and extends the misbegotten logic of "corporate personhood," and rightly so. Surely, one of the most farcical and tortuous doctrines ever established in our system of jurisprudence, this conflated concept has drawn the ire of (small-d) democrats at least as far back as Thomas Jefferson, who wrote in 1816, "I hope we shall ... crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."

Ethics and politics aside, as a matter of law this extension of power and rights to corporations is woven into the very definitional fabric of our federal legal code: "In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals...." Still, the notion of "corporate personhood" remains something of a misnomer. In our system, as now expanded by the Supreme Court, corporations actually enjoy more rights than individuals do in many ways. To wit: liability shields, rights of transfer, political access and influence, subsidies, laissez-faire regulation, freedom of movement, self-determination, self-governance, tax breaks etc. In particular, when it comes to political speech, corporations are now essentially unfettered in their freedom, something that we mere mortals have yet to fully secure. Consider the language of the court's recent ruling: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Does anyone else see the ray of hope in this line of reasoning? Apparently, the government can no longer arrest protesters during political demonstrations, if we are to take this literally as a matter of "strict construction." First Amendment advocates have long sought such a validation, yet somehow it took a corporation claiming their speech was impinged to finally motivate the justices to so rule. Disconcertingly, the court didn't actually have to address these larger questions, since the facts presented in Citizens United v. Federal Election Commission left open myriad avenues of decision that would have been consistent with the longstanding doctrine of "constitutional avoidance." In light of this case, where the court actively reached for the constitutional questions by calling upon the parties to reargue and rebrief the issues along broader lines than originally brought forward on appeal, it appears that we in fact do have a Supreme Court headed by those dreaded "activist judges" after all.

President Obama called the decision "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans." What wasn't immediately clear is whether he intended this as a lamentation or a mere observation of political reality. Either way, he was in essence stating a working fact, namely that whatever shards of democracy and the "will of the people" had existed up to now, the pretense is all but gone and corporations will openly run the show. I suppose this has the virtue, in any event, of being a more honest representation of how things actually transpire. The question is where things will go now that this critical threshold has been crossed.

Most likely, this ruling is a harbinger of further extensions of corporate rights and powers. A broad mandate and a willing court will impel corporations to take on even more of the qualities ordinarily associated with individuals, as noted in the SCOTUS blog's analysis of the decision: "It is not too much to expect that lawyers for corporate America may well be looking to explore the outer possibilities of their clients' 'personhood' and new-found constitutional equality." There previously had existed a founding principle that "natural persons" and "artificial persons" were separate and distinct entities under the law, with the former holding historical priority in our constitutional framework. By now, that distinction has been blurred to such an extent as to be effectively meaningless, as evidenced by a 2008 Federal District Court ruling in which it was proclaimed by the judge that "Blackwater is a person...."

If Blackwater is a person, I want out. Indeed, this suggests a strategy that "natural persons" might take in embracing the implications of this unrestricted corporate world. If a corporation can become a person, then by implication a person can become a corporation. I am thus advocating a new doctrine of "personal corporatehood," in which we should all avail ourselves of the enhanced rights granted to "artificial persons" in our system. People should begin taking steps to incorporate themselves immediately. (I personally am pursuing a nonprofit option, which matches my earning capacity quite well anyway.) Lest you think this is arising as a response to an outlandish Supreme Court ruling, in fact the sign I held during the FTAA protests in Miami in 2003 read: PERSONAL CORPORATEHOOD.

Just imagine the benefits. When someone asks you for a favor, you can off-puttingly reply, "I have to check with my board of directors at next month's meeting; someone will get back to you then." When you want to meet with your Congressperson on matters you feel strongly about, the receptionist will announce, "Senator, a corporation is here to see you," which will likely get you instant access. If you go public, you can sell shares in yourself and make a tidy sum (just be sure to retain a controlling interest). If someone irritates you or has something you want, you can likely get the Marines sent in to deal with them. You can avoid having to appear personally at court hearings, sending your hired-gun attorney instead. And you can't be thrown in jail, since a corporation itself cannot be imprisoned. See?

At the end of the day, we "natural persons" can try and fight city hall on this one, or we can get in the game and embrace the benefits of artificiality. In a world of surfaces, where profiteering masks as politics and gerrymandering as justice, this may well be the best of all strategies for survival. In fact, let's abolish altogether any outmoded notions of corporealism vis-a-vis "the body" in favor of cutting-edge views of corporatism as an expression of "the company." Whereas our individual bodies have served us well up to now, things will run much more smoothly overall if we are all bade to serve the companies instead. This is at least as rational as the logic of the Supreme Court in opening the floodgates for complete commercial control of governance under the guise of freedom.

Randall Amster J.D., Ph.D., teaches peace studies at Prescott College and serves as the executive director of the Peace & Justice Studies Association. His most recent book is the co-edited volume "Building Cultures of Peace: Transdisciplinary Voices of Hope and Action" (Cambridge Scholars Publishing, 2009).